Opinion
H045921
01-21-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSE DE JESUS ESTRADA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Monterey County Super. Ct. No. SS170309A)
A jury found defendant Jose De Jesus Estrada guilty of first degree murder and brandishing a firearm in the presence of a peace officer. The jury also found Estrada personally and intentionally discharged a firearm causing great bodily injury or death. The trial court imposed a total term of 50 years to life consecutive to 16 months in state prison.
Estrada raises numerous claims on appeal. First, he contends the evidence was insufficient to show he committed the murder with premeditation and deliberation. Second, he contends his trial counsel rendered ineffective assistance by failing to object to the prosecutor's comments during closing argument. Third, he contends the evidence was insufficient to support the brandishing conviction. Fourth, he contends we must remand for resentencing so the trial court can consider whether to impose a lesser firearm enhancement under People v. Morrison (2019) 34 Cal.App.5th 217, 220 (change in law gave the trial court discretion whether to impose an enhancement under subdivisions (b) or (c) of Penal Code section 12022.53) (Morrison). Fifth, he contends the trial court abused its discretion by failing to provide a statement of reasons for imposing a consecutive term on the brandishing conviction. Alternatively, he contends his trial counsel rendered ineffective assistance by failing to object to the trial court's consecutive sentencing on that term.
For the reasons below, we conclude Estrada is entitled to a limited remand for the trial court to consider whether to exercise its discretion and impose a term for a lesser firearm enhancement under Morrison, supra, 34 Cal.App.5th 217. We conclude all other claims are without merit. Accordingly, we will reverse the judgment and remand the matter for the sole purpose of resentencing.
Estrada also petitions this court for a writ of habeas corpus. (In re Estrada, H047637.) We deny his petition in a separate order on this date.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Procedural Background
The prosecution charged Estrada with two counts: Count 1—willful, deliberate, and premeditated murder (Pen. Code, § 187, subd. (a)); and count 2—exhibiting a firearm in the presence of a peace officer (§ 417, subd. (c)). As to count 1, the prosecution further alleged Estrada personally and intentionally discharged a firearm, causing great bodily injury or death. (§ 12022.53, subd. (d).) The jury found him guilty on both counts as charged and found the firearm enhancement true. The trial court imposed consecutive terms of 16 months on count 2; 25 years to life on count 1; and 25 years to life for the firearm enhancement.
Subsequent undesignated statutory references are to the Penal Code.
B. Facts of the Offenses
The prosecution charged Estrada with shooting and beating Alejandro Reyes to death in February 2017. The two men were workers at an agricultural property in Moss Landing. The prosecution alleged Estrada killed Reyes because Estrada was angry at Reyes for taking over his work duties. After Reyes's body was discovered, Estrada barricaded himself inside a trailer and wielded a firearm when police ordered him to surrender.
1. Events Preceding the Murder
Kathleen and Steven Loveless owned an agricultural property in Moss Landing. In 2004, Kathleen hired Estrada to help manage and maintain the property. Estrada lived on the property, and Kathleen considered him like "a little brother." In 2013, Estrada's girlfriend took their two children and left him. Estrada's behavior subsequently changed. The property deteriorated greatly as he struggled to perform his duties.
We refer to them by their first names to avoid confusion.
Early in February 2017, Estrada introduced Kathleen to Reyes. Estrada described Reyes as "a friend of a friend" whose car had broken down and who needed a place to fix it. Reyes stayed on the property and began doing work, pulling weeds and working on the Loveless's vehicles. Kathleen once saw Estrada yell angrily at Reyes when he was pulling weeds.
On February 13, Kathleen saw Estrada driving around the property dangerously and erratically. When she confronted him, Estrada said, "You're right, I don't fit here anymore," adding, "There's your new guy," referring to Reyes. Estrada gave Kathleen his house keys and walked off the property. Reyes stayed on the property and worked on Steven's car.
2. Events on the Day of the Murder
On February 15 at 8:00 a.m., Kathleen heard Estrada's truck on the property. She met him at the front door of her house, and they spoke briefly. Estrada asked Kathleen if she had given the house keys to Reyes, and she responded that she had. Estrada then told her she should not trust Reyes, but Kathleen told Estrada she needed someone to take care of the property. Estrada asked Kathleen to tell him (Estrada) he was not welcome at the property anymore, and Kathleen obliged, telling him, "I'm sorry, but you're not welcome any more." Estrada responded, "I know it's my own fault, I blew it," and he thanked Kathleen for the opportunity she had given him. He then left to gather his tools and walked toward the driveway.
After she had a cup of coffee, Kathleen went outside to spread some bird seed. She heard two loud cracks like "a sound of breaking some sort of ceramic thing." She assumed it was the sound of Estrada collecting his tools or throwing something out of his way, so she went back inside.
Around 8:20 a.m., a friend of Reyes arrived at the property to help fix a truck. Estrada stopped the friend from entering the property and told him Reyes was gone. Estrada added, "Thanks to him I lost everything, and he's not coming back." When the friend asked Estrada if he knew where Reyes was, Estrada said Reyes "No, he just went out walking, but he's never coming back." The friend observed that Estrada had a lot of blood on his ears, forehead, and hands. Some of the blood was dry and some of it was still red. Estrada was using the arm of his jacket to clean his eyes and forehead.
Around 9:00 a.m., Kathleen walked down the driveway to check on her dogs and feed some feral cats. She saw Estrada in the front yard and noticed "quite a splash of blood" on his face and eyes. She asked him if he had hurt himself, but he said he was fine, and rubbed his ear where there was another spot of blood. She also saw him trying to wash his hands and wiping them with a rag.
Before Estrada left, he went to the dog pen to say goodbye to the dogs, but they sniffed his fingers, backed away from him, and hid behind Kathleen. Estrada said, "You see, you spoiled that. You spoil everything. Everything that happened here is your fault, don't forget that." As he was getting in the truck to leave, he added, "Don't worry about that guy, I took care of him for you." He had an angry look in his eyes, and there was a lump underneath his shirt.
After Estrada drove away, Kathleen called 911 and walked over to the side of the house where Estrada had lived. She saw Reyes's body lying on the ground. His eyes were wide-open and his body was turning blue. There was blood and there were broken ceramic paving tiles around his head. He appeared "quite dead" to Kathleen. The police arrived soon after and found the body.
3. The Brandishing Incident
The police located Estrada in a double-wide trailer on a neighboring property. They set up a perimeter, surrounded the trailer, and used a patrol car's P.A. system to order Estrada out. He did not immediately exit, so the police kept pleading with him to come out. At one point, he threw several objects like mail and plates of food out of the windows.
About ten minutes later, Estrada appeared on the porch holding a long gun in his hands with the barrel pointing upwards. Police ordered him to put the gun down, but he ignored their commands and retreated back into the house. He was close enough to the police to see they were police, and they were within firing range of the gun. Estrada did not point the gun at anyone. One of the officers testified that he felt personally threatened by Estrada holding the gun, explaining, "[A]nytime anybody has a weapon in their hands, I personally [feel] threatened." The standoff lasted about 20 to 45 minutes before Estrada came out and surrendered.
4. Autopsy
The autopsy showed Reyes had suffered a single gunshot wound to the upper left chest. The bullet traveled left to right, hitting both lungs and the aorta before lodging in Reyes's body. The wound caused massive bleeding that could be expected to lead to death within minutes.
Reyes suffered other injuries that also could have caused his death, including a cervical vertebral fracture of his neck, and a blow to the chest that caused fractures of the sternum and ribs. He had also suffered minor blunt force trauma to the head consisting of two blows or falls—one to his cheek, and one to his scalp. The injury to the scalp was consistent with being hit by a ceramic tile. The injury on his cheek consisted of a large laceration with facial bone fractures underneath or adjacent to it. This injury was also consistent with being hit by a ceramic tile. The medical examiner opined that Reyes died of multiple traumatic injuries including the gunshot wound, the cervical spine fracture, and the injuries to the rib cage.
5. Other Evidence
Loveless testified that she had kept three guns on the property: A .22-caliber single-shot long rifle, a .22-caliber handgun, and a .410-gauge shotgun. The police recovered all three guns from the front closet of Kathleen's house. When defense counsel asked Loveless if she had ever seen Estrada with those guns, Loveless said she had seen him working on a rifle about six months before.
II. DISCUSSION
A. Sufficiency of the Evidence Proving Premeditation and Deliberation
Estrada contends the evidence was insufficient to prove he killed Reyes with premeditation and deliberation. Estrada argues we should reduce the conviction from first to second degree murder. The Attorney General contends substantial evidence supported the jury's finding of premeditation and deliberation.
1. Legal Principles
"In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question . . . is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) The California Constitution requires the same standard. (Ibid.) This standard applies even when the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) "[W]e review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] A reviewing court must reverse a conviction where the record provides no discernible support for the verdict even when viewed in the light most favorable to the judgment below. [Citation.] Nonetheless, it is the [trier of fact], not the reviewing court, that must weigh the evidence, resolve conflicting inferences, and determine whether the prosecution established guilt beyond a reasonable doubt. [Citation.] And if the circumstances reasonably justify the trier of fact's findings, the reviewing court's view that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]" (People v. Hubbard (2016) 63 Cal.4th 378, 392 (Hubbard).)
To prove first degree murder, the prosecution had to prove the killing was premeditated beyond a reasonable doubt. "An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." (People v. Stitely (2005) 35 Cal.4th 514, 543.) "A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.] 'The process of premeditation does not require any extended period of time. "The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly...." [Citations.]' '' (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Evidence of "planning activity" is relevant to show premeditation. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson).) Planning activity consists of facts about how and what the defendant did before the killing that show the defendant was engaged in activity directed toward, and intended to result in, the killing. (Ibid.)
2. Substantial Evidence Supported a Finding of Premeditation and Deliberation
Estrada concedes he had a motive to kill Reyes, but he contends the evidence was nonetheless insufficient to show premeditation and deliberation under the factors set forth in Jackson, supra, 70 Cal.2d 15. He contends motive alone is insufficient to prove first degree murder and he argues there was no evidence of planning activity or any "preconceived design to kill."
The Attorney General points to several categories of evidence supporting an inference of premeditation and deliberation. First, the evidence showed that Estrada had sought out and ambushed Reyes, as shown by the fact that Reyes had been struck in the back of the head while Estrada suffered no injuries himself. Furthermore, Estrada used two weapons in the attack—he both shot Reyes with a gun and bludgeoned him with ceramic tile. The fact that Estrada had used two items to kill Reyes implied that he reflected on his actions in the time it took to switch between them. By the same token, Estrada inflicted numerous significant injuries to Reyes's head and body during the attack, including multiple rib fractures, a broken sternum, lacerations to both the back and front of Reyes's head, and a fractured neck. The manner of killing implied Estrada had time to reflect on his actions during this extended physical attack. (See People v. Hovarter (2008) 44 Cal.4th 983, 1020 [prolonged manner of taking a person's life affords ample time for the offender to consider the nature of the deadly act]; People v. Shamblin (2015) 236 Cal.App.4th 1, 11-12 [same].) The Attorney General argues the evidence also supported the theory that Estrada brought a gun to the scene of the killing.
Estrada responds that the theories put forth by the Attorney General are too speculative to support an inference of planning activity. Estrada suggests alternate explanations for the manner of injuries suffered by Reyes, and he contends the evidence Estrada brought a gun to the scene of the killing was weak. Estrada refutes the suggestion that the extensive multiple injuries Reyes suffered shows that Estrada had time to reflect on his actions.
We are not persuaded by Estrada's arguments. In reviewing the record for substantial evidence, we do not look to any single piece of evidence in isolation; we consider the record as a whole. (Hubbard, supra, 63 Cal.4th at p. 392.) Furthermore, we do not engage in weighing contradictory interpretations or theories. (Ibid.) The totality of the evidence includes Estrada's conduct and statements both before and after the attack—which indicated he harbored anger or jealousy towards Reyes beforehand—as well as the evidence of numerous physical wounds to the victim, inflicted with two different weapons—the gun, and ceramic tile. The autopsy and other evidence implied the attack took place over minutes, and it was reasonable to infer Estrada had time to reflect on his actions during that period.
Looking at the record as a whole, a reasonable jury could find beyond a reasonable doubt that Estrada planned the attack and reflected on his actions to a sufficient degree to constitute premeditation and deliberation. We conclude this claim is without merit.
B. Ineffective Assistance of Counsel for Failure to Object to Improper Comments by the Prosecutor in Closing Arguments
Estrada contends the prosecutor committed prosecutorial misconduct in her closing argument by stating facts not in evidence and misstating the law on premeditation and deliberation. Because defense counsel did not object, Estrada now contends counsel's failure to object constituted ineffective assistance of counsel. The Attorney General contends the prosecutor did not engage in misconduct and therefore defense counsel had no obligation to object.
1. Legal Principles
" 'To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel's performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.' [Citation.] ' "Finally, prejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citation.] 'It is the defendant's burden on appeal [. . .] to show that he or she was denied effective assistance of counsel and is entitled to relief. [Citations.] "[T]he burden of proof that the defendant must meet in order to establish his [or her] entitlement to relief on an ineffective-assistance claim is preponderance of the evidence." [Citation.]' " (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1406-1407 (Dowdell).)
"When prosecutorial misconduct 'infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated.' (People v. Panah (2005) 35 Cal.4th 395, 462.) [. . .] ' " '[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " ' [Citation.] [¶] Generally, '[i]t is misconduct for the prosecutor to misstate the applicable law. . . .' [Citation.] However, 'To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.' [Citation.] There are two exceptions to forfeiture: (1) the objection or the request for an admonition would have been futile; or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct. [Citation.] A defendant claiming one of these exceptions must find support for it in the record. [Citation.]" (Dowdell, supra, 227 Cal.App.4th at p. 1406.)
2. Background
In her closing argument, the prosecutor argued several times that Estrada had brought a gun to the scene of the killing and that he did not normally carry a gun. In one instance, the prosecutor stated, "And we know he brought that gun with him there that day because all the evidence that Kathy testified to of her guns on the property, they were all tested, none of those are the murder weapon."
In discussing the law on premeditation and deliberation, the prosecutor argued that the element depends on "the extent of the reflection, not the length of time," and added, "a cold and calculated decision to kill can be done very quickly." The prosecutor offered the example of a driver approaching a yellow light to illustrate the point: "Now, what does the average person think about in that moment when the green light is turning yellow and you're approaching the intersection? What the average person thinks about, are there cops around? Second, what kind of cars are around, where are the cars behind or in front of them? Are there pedestrians around that they're going to hit? And third, how fast am I going? Am I going too fast? Am I going to make it? Am I not going to make? [¶] Now, in that split second, that few seconds moment after the light turns yellow, you are thinking about and you're considering the consequences of going through the light or stopping for the red. In that split second, that decision that you're thinking about and making, that's deliberation and premeditation. It can happen that fast. When you have thought about the consequences and decided to run the light."
Defense counsel did not object to any of these arguments.
3. The Prosecutor Did Not Commit Misconduct
Estrada contends the prosecutor committed misconduct by stating facts not in evidence when she said he brought a gun to the scene of the killing and that he did not normally carry a gun. He argues there was no evidence he brought a gun to the property, nor any evidence that he did not normally carry one. "While counsel is accorded 'great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence [citation],' counsel may not assume or state facts not in evidence [citation] or mischaracterize the evidence [citation]." (People v. Valdez (2004) 32 Cal.4th 73, 133-134.) A prosecutor may argue permissible inferences, however. " ' "Whether the inferences the prosecutor draws are reasonable is for the jury to decide." ' [Citation.]" (Ibid.)
The Attorney General contends the prosecutor drew a permissible inference from the evidence. The Attorney General points out that Loveless testified she had known Estrada for 20 years, and she had only once seen him with a gun—when he was cleaning a rifle. She also testified that the only guns on her property were the guns in a closet near the front door. We agree with the Attorney General that a reasonable jury could infer from this evidence that Estrada did not normally carry a gun and brought a gun to the scene of the killing. It was therefore not misconduct for the prosecutor to argue this inference.
Second, Estrada argues that the prosecutor's yellow-light example constituted a misstatement of the law. "It is misconduct for a prosecutor to misstate the law during argument." (People v. Otero (2012) 210 Cal.App.4th 865, 870.) Before closing arguments, the trial court had instructed the jury, "The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." In her closing argument, the prosecutor used the yellow-light example to argue that a cold, calculated decision can be reached quickly. Estrada does not dispute the trial court's instruction on the amount of time required for deliberation and premeditation. Rather, he contends the yellow-light example misstated the law because it described intent, not premeditation and deliberation. We are not persuaded.
The prosecutor's argument was similar to a closing argument examined in People v. Avila (2009) 46 Cal.4th 680 (Avila). In Avila, "the prosecutor used the example of assessing one's distance from a traffic light, and the location of surrounding vehicles, when it appears the light will soon turn yellow and then red, and then determining based on this information whether to proceed through the intersection when the light does turn yellow, as an example of a 'quick judgment' that is nonetheless 'cold' and 'calculated.' " (Id. at p. 715.) The California Supreme Court rejected the defendant's challenge to this argument. Estrada acknowledges Avila, but he contends its holding is distinguishable because the prosecutor in that case referred to "when it appears the light will soon turn yellow and then red," whereas the prosecutor here referred to a light that had already turned yellow. We find this distinction insufficient to distinguish the case. The thrust of the prosecutor's argument here was identical to that of the argument in Avila, and we perceive nothing improper about it.
Because the prosecutor made no improper statements, defense counsel had no professional obligation to object, as any objections would have been futile. Counsel therefore did not render ineffective assistance. (People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel does not provide ineffective assistance of counsel by declining to lodge a futile objection].) We conclude this claim is without merit.
C. Sufficiency of the Evidence to Prove Brandishing
Estrada contends the evidence was insufficient to convict him on count 2, exhibiting a firearm in the presence of an officer (§ 417, subd. (c)). The Attorney General contends the evidence of Estrada's conduct as a whole supported the conviction.
The standard of review for a claim of insufficient evidence is set forth above in section II.A.1.
"Every person who, in the immediate presence of a peace officer, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and who knows, or reasonably should know, by the officer's uniformed appearance or other action of identification by the officer, that he or she is a peace officer engaged in the performance of his or her duties, and that peace officer is engaged in the performance of his or her duties, shall be punished by imprisonment in a county jail for not less than nine months and not to exceed one year, or in the state prison for 16 months, or two or three years." (§ 417, subd. (c), italics added.)
2. Sufficient Evidence Supported the Conviction on Count 2
Estrada does not dispute that he exhibited a firearm in the presence of a peace officer, but he argues there was insufficient evidence that he did so in a rude, angry, or threatening manner. The police testified that Estrada wielded a rifle at Loveless's house when police surrounded the house and ordered him to come out. Estrada points to testimony that he was holding the barrel of the rifle with the barrel pointing upwards, and he never aimed it at anyone. He argues there was no substantial evidence he exhibited the weapon in a rude, angry, or threatening manner.
The Attorney General points to the testimony describing the overall sequence of events around Estrada's wielding of the rifle. Before he emerged with the rifle, he was inside the trailer refusing officers' commands to exit and throwing objects out of the windows. When he finally emerged, after 20 to 45 minutes, he held the rifle with the barrel pointed upwards, and ignored the officers' repeated commands to put the gun down. One of the officers testified that he was close enough for Estrada to shoot and hit the police, and the officer felt threatened when Estrada emerged with the gun.
We agree with the Attorney General. Looking at the evidence as whole, a reasonable jury could conclude that Estrada exhibited the firearm in a rude, angry, or threatening manner. Nothing in the statute or the case law requires a finding that the defendant point or aim the weapon at any person. The context of the encounter—in which Estrada defied officers' commands and displayed the weapon after an extended standoff—supports a finding of brandishing. We conclude this claim is without merit.
D. Imposition of Firearm Enhancement Under Penal Code Section 12022 .53
The trial court imposed a term of 25 years to life under subdivision (d) of section 12022.53 for personally and intentionally discharging a firearm and proximately causing great bodily injury or death. Estrada contends we must remand for resentencing to allow the trial court to exercise its discretion to impose a "lesser included" enhancement under subdivisions (b) or (c) of that section, or under subdivision (a) of section 12022.5 (personally using a firearm in the commission of the offense). For this proposition, Estrada relies on Morrison, supra, 34 Cal.App.5th 217, 220 (change in law gave the trial court discretion whether to impose an enhancement under subdivisions (b) or (c) of section 12022.53).
This issue is currently pending before the California Supreme Court in People v. Tirado (2019) 38 Cal.App.5th 637, review granted Nov. 13, 2019, S257658 (Tirado) (disagreeing with Morrison).
The Attorney General does not dispute that the trial court had the discretion to impose one of the lesser enhancements under Morrison; the Attorney General concedes that point, citing People v. McDaniels (2018) 22 Cal.App.5th 420, 423 (McDaniels). Rather, the Attorney General argues Morrison and McDaniels are distinguishable. The Attorney General contends remand is unwarranted because the there was no indication the trial court was unaware it had the discretion to impose one of the lesser enhancements and the record shows the court would not do so on remand.
1. Background
Effective January 1, 2018, Senate Bill No. 620 amended section 12022.53 to give trial courts the discretion to strike a firearm enhancement or finding as follows: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (Stats. 2017, ch. 682, §§ 1(c)-2(h).)
The jury rendered verdicts in May 2018, finding true the allegation under subdivision (d) of section 12022.53. The prosecution had not alleged either lesser enhancement under subdivisions (b) or (c), and the jury was not instructed on them. The jury was instructed, however, that if it found Estrada guilty of the lesser included crime of voluntary manslaughter on count 1, it should consider the allegation that he personally used a firearm in the commission of the offense under subdivision (a) of 12022.5. Having convicted Estrada of first degree murder, the jury never made any such finding under subdivision (a) of 12022.5.
The trial court sentenced Estrada in June 2018. In its sentencing memorandum, the prosecution addressed the recent change in law and acknowledged the trial court had the discretion to strike or dismiss the subdivision (d) enhancement. The prosecution argued, however, that the court should still impose the enhancement given the seriousness of the offense and the brutality with which Estrada inflicted numerous blunt force injuries to the victim. Nothing in the memorandum argued the trial court had the discretion to impose a lesser enhancement under subdivisions (b) or (c) of section 12022.53 or subdivision (a) of section 12022.5. Estrada argued the trial court should strike the enhancement, but he did not argue the trial court had the discretion to impose any lesser enhancement. In denying the request to strike the enhancement, the court stated, "I am not going to strike the firearm enhancement. I think it's appropriate in this case." Estrada immediately filed a notice of appeal.
In April 2019, the Court of Appeal for the First District, Division 5, decided Morrison, supra, 34 Cal.App.5th 217. Morrison held the amended section 12022.53 gives trial courts the discretion to impose, in the interests of justice under section 1385, a lesser enhancement based on subdivisions (b) or (c), even if neither enhancement was alleged. (Id. at p. 223.)
2. Morrison Warrants Remand for the Trial Court to Exercise Its Discretion
The Attorney General concedes that the trial court had the discretion to impose one of the lesser enhancements under the amended section 12022.53. The concession is well-taken, for the reasons set forth in Morrison, supra. The reasoning in Morrison is based in part on this Court's holding in People v. Fialho (2014) 229 Cal.App.4th 1389 (finding of enhancement under subdivision (d) of section 12022.53 supported trial court's imposition of unpleaded lesser enhancement under subdivision (a) of section 12022.5). Morrison also relied in part on the California Supreme Court's holding in People v. Marsh (1984) 36 Cal.3d 134 (section 1385 allowed for a broad range of sentencing options including the striking of some enhancements but not others). We find this reasoning persuasive. Other courts have disagreed with Morrison's analysis. (Tirado, supra, 38 Cal.App.5th 637; People v. Yanez (2020) 44 Cal.App.5th 452; People v. Garcia (2020) 46 Cal.App.5th 786; People v. Valles (2020) 49 Cal.App.5th 156.) We respectfully disagree with those opinions and we accept the Attorney General's concession.
The Attorney General nonetheless contends remand is unwarranted because the record shows the trial court understood it had the discretion to impose the lesser enhancement and elected not to do so. We are not persuaded. The Court of Appeal for the First District decided Morrison about ten months after Estrada was sentenced. To our knowledge, that court was the first to construe the amended section 12022.53 to allow for the imposition of a lesser enhancement. That a sentencing court could do so is not obvious from the plain language of the amendment itself, and neither party in this case argued that the court had such discretion. Estrada argued the trial court could strike the subdivision (d) enhancement altogether, but he did not argue for a lesser enhancement. And while the trial court described the subsection (d) enhancement as "appropriate," it did not elaborate further.
The Attorney General contends we should apply a presumption that the sentencing court understood its discretion under the law. But the presumption is not appropriate where sentencing occurs prior to the issuance of a new decision expanding the scope of the sentencing court's discretion. (Morrison, supra, 34 Cal.App.5th at p. 224, citing People v. Fuhrman (1997) 16 Cal.4th 930, 944-946.) Accordingly, we will remand to allow the trial court to consider whether to apply one of the lesser enhancements under subdivisions (b) or (c) of section 12022.53 or subdivision (a) of section 12022.5.
E. Imposition of a Consecutive Term for the Brandishing Conviction
Estrada contends the trial court erred by failing to state its reasons for imposing a consecutive term for the brandishing conviction on count 2. The Attorney General contends Estrada forfeited this claim by failing to object below, and that the trial court did not abuse its discretion regardless. Estrada argues that if his counsel forfeited the claim, then counsel rendered ineffective assistance of counsel.
1. Procedural Background
The probation report listed two factors in aggravation pertaining to count 2: "The crime involved great threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness, as the defendant, who was barricaded inside a house, brandished a weapon at law enforcement officers," (Cal. Rules of Court, rule 4.421(a)(1)); and "The defendant has engaged in violent conduct that indicates a serious danger to society," (Cal. Rules of Court, rule 4.421(b)(1)). The report also listed two factors in mitigation: "The defendant has an insignificant record of criminal conduct, considering the recency and frequency of prior crimes," (Cal. Rules of Court, rule 4.423(b)(1)); and "The defendant's prior performance on probation was satisfactory," (Cal. Rules of Court, rule 4.423(b)(6)).
Both parties filed sentencing memoranda prior to the hearing. The prosecution argued, among other things, that the trial court should impose a consecutive two-year term on count 2. Defense counsel argued only that the trial court should exercise its discretion to strike the firearm enhancement under subdivision (d) of section 12022.53. Defense counsel made no argument against or objection to the imposition of a consecutive term on count 2.
At the hearing, the prosecution orally restated its position. The trial court then solicited argument from defense counsel. Again, defense counsel argued that the court should strike the firearm enhancement; counsel did not address the issue of whether to impose a consecutive term on count 2.
Before imposing sentence, the trial court stated, "Mr. Estrada, this case is unique in that it is not typical for us to see someone your age with a lack of criminal history engage in this kind of conduct. The best I can take from what I heard at the trial was that you started drinking, potentially using drugs, and lost your wife, lost your family and then things just spiraled downward and downward and downward until you, essentially, weren't yourself and engaged in conduct that perhaps is not typical for what you would have done [. . . ¶ . . .] had you not been under the influence of drugs and alcohol. And I'm not talking about on the day of, I'm talking about for an extended period of time." The court then imposed terms for count 1 and the firearm enhancement.
Addressing the term for count 2, the court then stated, "[G]oing through the factors in aggravation and mitigation, the Court has found that you engaged in violent conduct indicating you're a danger to society. [¶] However, the Court finds that you did have an insignificant record at the time of the offense and your prior performance on probation was satisfactory. [¶] Weighing the factors in aggravation and mitigation, the Court finds the lower term to be appropriate." The court then imposed the lower term of 16 months on count 2, consecutive to the terms for count 1 and the firearm enhancement.
After pronouncing sentence, the court asked defense counsel whether she had advised Estrada of his appellate rights, and counsel responded that she had advised him and that they planned to appeal. Counsel thanked the court, and the hearing was adjourned.
2. Legal Principles
A trial court has broad discretion to impose consecutive sentences when a person is convicted of two or more crimes. (People v. Shaw (2004) 122 Cal.App.4th 453, 458.) When the court elects to impose consecutive sentences, a statement of reasons is required. (People v. Gutierrez (1991) 227 Cal.App.3d 1634, 1638.) Rule 4.425 of the California Rules of Court sets forth a nonexclusive list of factors the court should consider in the decision to impose consecutive sentence. These include whether the crimes and their objectives were predominantly independent of each other; whether the crimes involved separate acts of violence or threats of violence; or whether the crimes were committed at different times and places. (Cal. Rules of Court, rule 4.425(a).) "Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [¶] (1) A fact used to impose the upper term; [¶] (2) A fact used to otherwise enhance the defendant's sentence in prison or county jail under section 1170(h); and [¶] (3) A fact that is an element of the crime may not be used to impose consecutive sentences." (Cal. Rules of Court, rule 4.425(b).)
"[C]omplaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal." (People v. Scott (1994) 9 Cal.4th 331, 356 (Scott).) This rule applies when the trial court " 'clearly apprise[s]' the parties 'of the sentence the court intends to impose and the reasons that support any discretionary choices' [citation], and gives the parties a chance to seek 'clarification or change' [citation] by objecting to errors in the sentence. The parties are given an adequate opportunity to seek such clarifications or changes if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing. The court need not expressly describe its proposed sentence as 'tentative' so long as it demonstrates a willingness to consider such objections. If the court, after listening to the parties' objections, concludes that its proposed sentence is legally sound, it may simply state that it is imposing the sentence it has just described, without reiterating the particulars of that sentence." (People v. Gonzalez (2003) 31 Cal.4th 745, 752.)
"Absent a clear showing of abuse, the trial court's discretion in sentencing should not be disturbed on appeal. 'Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered.' [Citation.]" (People v. Sanchez (1982) 131 Cal.App.3d 718, 740.) Even where the trial court abuses its discretion in sentencing, we do not remand for resentencing unless it is reasonably probable a result more favorable to the defendant would have been reached in the absence of error. (People v. Sanchez (1994) 23 Cal.App.4th 1680, 1685.)
3. Estrada Suffered No Prejudicial Error At Sentencing
The Attorney General contends Estrada forfeited this claim by failing to object below. Estrada acknowledges the failure to object but he contends forfeiture is inapplicable because the trial court did not provide a meaningful opportunity to object. But the trial court expressly solicited defense counsel's argument on the matter at the sentencing hearing, and counsel argued only that the court should strike the firearm enhancement. Estrada argues that the trial court was required to affirmatively solicit objections again after stating the intended sentence, but we do not read Scott so narrowly. "We do not interpret Scott's use of the phrase 'meaningful opportunity to object' to require a tentative ruling in advance of the actual sentence. In our view, a meaningful opportunity to object means that the defendant be given the opportunity to address the court on the matter of sentence and to object to any sentence or condition thereof imposed by the court." (People v. Zuniga (1996) 46 Cal.App.4th 81, 84 (Zuniga).) Furthermore, nothing prevented counsel from lodging an objection at any time thereafter. The court did not summarily end the hearing after pronouncing sentence; rather, the court asked defense counsel whether she had informed Estrada of his appellate rights.
Estrada was thereby given a meaningful opportunity to be heard. "Nothing in the record suggests that appellant or defense counsel was precluded from objecting to the sentence or was in any way denied a meaningful opportunity to state his case for an alternative sentence or question the court's reasons for a prison sentence." (Ibid.) (See also People v. Boyce (2014) 59 Cal.4th 672, 731 [finding forfeiture where defendant did not lodge objections to imposition of consecutive sentences]; People v. Bautista (1998) 63 Cal.App.4th 865, 870 [adopting Zuniga].)
Regardless, nothing in the court's pronouncement of sentence constituted an abuse of discretion. The court set forth both aggravating and mitigating factors in explaining the reasons for imposing the term on count 2. As an aggravating factor, the court found Estrada engaged in violent conduct indicating he presented a serious danger to society. (Cal. Rules of Court, rule 4.421(b)(1).) The court then imposed the consecutive 16-year term on count 2. While the court did not expressly separate out the factors justifying the consecutive sentence versus those justifying a mitigated term, the context of the court's statement suggests it did so in weighing the balance of the factors. A reasonable interpretation of the court's statement is that it imposed the lower 16-month term because of the mitigating factor, but made the sentence consecutive based on the aggravating factor. This was not an abuse of discretion.
Finally, even assuming the trial court erred, Estrada is not entitled to a remand for resentencing unless he can show he was prejudiced. (People v. Sanchez, supra, 23 Cal.App.4th at p. 1685.) He has not made such a showing. In addition to the aggravating factor cited by the trial court, there were multiple other factors supporting a consecutive term. The brandishing offense was committed independently and for different objectives—e.g., delaying or evading capture; it involved a separate act of violence or threat of violence; and it was committed at a different time and place than the murder. (See Cal. Rules of Court, rule 4.425(a).) It is not reasonably likely the trial court would ignore these factors and reach a more favorable outcome if we remanded for resentencing. For the same reasons, even assuming defense counsel rendered deficient performance in failing to object, Estrada has not shown he suffered prejudice under Strickland.
The legal standard for ineffective assistance of counsel is set forth above in section II.B.1.
Accordingly, we conclude this claim is without merit. We will reverse the judgment and remand the matter to the trial court for the sole purpose of resentencing for the reasons set forth above in section II.D.
III. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for the sole purpose of possible resentencing in accordance with Morrison, supra. If the trial court elects not to exercise its discretion and impose a lesser firearm enhancement under subdivisions (b) or (c) of section 12022.53, or subdivision (a) of section 12022.5, the trial court shall reinstate the judgment.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Grover, J. /s/_________
Danner, J.